21. The Postal Service's Qualification Standards for Bargaining Unit Positions describe the educational background, experience, and proficiency requirements for a wide variety of clerical positions throughout the Postal Service, including the time and attendance clerk position. These standards also contain a requirement that all applicants have the "ability to hear the conversational voice, hearing aid permitted."

(b) Davis' ability to communicate in the time and attendance clerk position is made easier because (1) the subjects discussed are simple, repetitive and routine, and are reflected in written procedures and pre-printed forms, and (2) the persons who communicate most often with the time and attendance clerk are the supervisors of the hourly employees (who are or can become used to communicating with Davis), rather than the hourly employees themselves;

(c) Expansion of the existing TTY keyboard telephone system will enable Davis to communicate even more efficiently and quickly with fellow employees. The TTY keyboard systems utilizes a monitor on which words will appear by punching a keyboard. This system has been successfully used by deaf persons in the workplace and, in this case, can be expanded at a minimal cost.

29. Both Davis and the Postal Service presented expert testimony regarding Davis' ability to communicate within the workplace. Davis' expert witnesses were Lucius Swilley ("Swilley"), a former executive with Illinois Bell Telephone Company, and Marymargaret Sharp-Pucci ("Sharp-Pucci"), a professor at Northern Illinois University and a Project Coordinator for the Institute on Deafness who is herself deaf. Both of these experts testified that the Postal Service could make minimal and inexpensive accommodations to enable Davis to perform the communication required by the time and attendance clerk position.

(b) Judith Lukas' testimony on all disputed issues of fact was knowledgeable, precise, unbiased, candid, and very credible;

(c) Mary Clemons' testimony on all disputed issues of fact was biased, evasive, inconsistent, and not credible;

(d) Gloria de Francesco's testimony on all disputed issues of fact was knowledgeable, concise, forthright, and very credible. As noted already, the demonstration in open court with Davis was very credible;

(e) Lucius Swilley's testimony on all disputed issues of fact was knowledgeable, precise, forthright, and very credible;

(f) Marymargaret Sharp-Pucci's testimony on all disputed issues of fact was very knowledgeable, detailed, precise, and very credible;

(g) Dr. Rodney Fralicx's testimony on all disputed issues of fact was very vague, speculative, and conjectural. Overall, his testimony was neither knowledgeable nor credible.

(h) Arlene Anglemier's testimony on all disputed issues of fact was significantly biased and not credible;

(i) Sandra Lawera's testimony on all disputed issues of fact was significantly biased and not credible;

(j) Gloria Meyer's testimony on the majority of all disputed issues of fact was generally biased, but credible to the extent that she conceded that Davis' work during the course of her training in the time and attendance office was good; that Davis committed some errors; that it was not unusual for a trainee to commit errors; and that Davis' deafness would enable her to concentrate more easily on the time cards than other hearing employees could;

(k) Cathy Heinemann's testimony on all disputed issues of fact was not particularly knowledgeable and, to that extent, not credible;

(l) Gerald Kubick's testimony on all disputed issues of fact was knowledgeable, precise, and credible to the extent that he admitted that Davis could perform the duties of the time and attendance clerk position with the exception of answering the telephone;

(m) Ann Kulbeckas' testimony on all disputed issues of fact was credible to the extent that she admitted that she could not think of a single question which might be asked of the time and attendance clerk which could not be written; and

5. The burdens of proof and persuasion in cases brought under the Rehabilitation Act are generally modeled after those developed under Title VII case law. See Guinn v. Bolger, 598 F. Supp. 196, 200 (D.D.C. 1984). In order to establish a prima facie case, Davis must demonstrate that she belongs to a protected class, that she was qualified for the time and attendance clerk position, and that the Postal Service rejected her for the position under circumstances giving rise to an inference of unlawful discrimination. See Prewitt, 662 F.2d at 305 n.19, 306 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981)).

6. Davis is a "handicapped person" within the meaning of 29 C.F.R. § 1613.702 and, therefore, belongs to a protected class.

7. Davis is also qualified for the time and attendance clerk position. Under 29 C.F.R. § 1613.702(f), a "qualified handicapped person" is defined as one who can perform the "essential functions" of a position with or without reasonable accommodation. See Arline, 480 U.S. at 288, 107 S. Ct. at 1131 n.17; Carter, 849 F.2d at 1053.

8. The Postal Service has an affirmative obligation to make reasonable accommodations for Davis to enable her to perform the "essential functions" of the time and attendance clerk position. See Arline, 480 U.S. at 489, 107 S. Ct. at 1131 n. 19; Carter, 849 F.2d at 1053.

9. The "essential functions" of the time and attendance clerk position are those listed in the Postal Service's Standard Position Description. See Guinn, 598 F. Supp. at 201-202. The Standard Position Description lists a number of duties involving paperwork and communication on time and attendance issues. The duties described require the exchange of information, not the ability to hear the conversational voice with or without a hearing aid.

10. Pursuant to the dictates of 29 C.F.R. § 1613.705, the Postal Service may not use any selection criterion that "screens out or tends to screen out" qualified handicapped individuals unless the criterion is shown to be "job-related for the position in question." See 29 C.F.R. § 1613.705; Bentivegna v. United States Dept. of Labor, 694 F.2d 619, 622 (9th Cir. 1982); Prewitt, 662 F.2d at 306-07. Thus, to the extent that the Postal Service's Qualification Standards for Bargaining Unit Positions establish an absolute, across-the-board requirement that the time and attendance clerk be able "to hear the conversational voice, hearing aid permitted," these standards are overbroad and discriminatory because the ability to hear the conversational voice is not "job related," that is, "required by business necessity." See Prewitt, 662 F.2d at 306-07. Cf. Southeastern Community College v. Davis, 442 U.S. 397, 407, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979) (where the Court held that a student nurse's or Registered Nurse's ability to understand speech without reliance on lip-reading was necessary for patient safety). A handicapped person may only be required to satisfy a job's "necessary and legitimate physical requirements." See Carter, 849 F.2d at 1055-56.

11. According to the applicable standard position description, the time and attendance clerk is basically responsible for tallying, documenting, and analyzing the hours that Postal Service employees work or are absent, and for implementing the Postal Service's policies for hourly employees. The Court specifically holds that these duties are the "essential functions" of a time and attendance clerk.

12. The Oak Brook Post Office's practice of using the time and attendance clerk, together with three other clerical employees, to answer all the telephone calls that are received in its general office, does not transform answering the telephone into an "essential function" of the time and attendance job.

13. Davis can perform the "essential functions" of the time and attendance clerk position with no accommodation at all for the paperwork required, and with the following minimal and inexpensive accommodations for the communication required:

(b) prepared lists of terms and questions frequently encountered by the time and attendance clerk, to allow people to point to the topic they want to discuss and thereby make lip-reading easier;

(c) elementary training that can be done at no cost to the Postal Service to make hearing employees aware of common mistakes in communicating with deaf employees;

(d) training in basic signs and finger spelling for those few hearing employees who might come into contact with Davis on a frequent basis. This training can be done in about one hour; and

(e) expanding the use of a TTY keyboard for the hearing impaired as a means of making written communication faster. The TTY keyboard can be purchased at minimal cost. There is a TTY keyboard already installed at the Oak Brook Post Office.

14. These accommodations are considerably simpler and less expensive than the accommodations suggested in the regulations which define "reasonable accommodation." Those suggestions include job restructuring, hiring interpreters or readers, and purchasing equipment or devices. See 29 C.F.R. § 1613.704(b).

15. These accommodations will not require a "fundamental alteration" or a "substantial adjustment" in the Oak Brook Post Office's operations. Cf. Davis, 442 U.S. at 410.

16. Davis has carried her burden of establishing a prima facie case of handicap discrimination. See Prewitt, 662 F.2d at 306-07.

17. Once Davis has made a prima facie showing, the burden of persuasion shifts to the Postal Service to challenge Davis' showing or to demonstrate that the Postal Service had a "legitimate, non-discriminatory reason" for denying Davis the time and attendance clerk position. See Guinn, 598 F. Supp. at 202. Typically, an employer attempts to overcome this burden by showing that the challenged criterion is "required by business necessity" or that providing the necessary accommodations would create "undue hardship." See Prewitt, 662 F.2d at 306.

18. In this case, the Postal Service has not shown that the ability to hear the conversational voice is a "business necessity" for the time and attendance clerk position. At best, the Postal Service has produced some testimony that some of its hearing employees might be inconvenienced because they would be required to communicate with a person who cannot hear. "Mere expediency" or lack of it, however, should not be confused with "business necessity." See Bentivegna, 694 F.2d at 621-22.

21. Davis has satisfied her ultimate burden of proving that the Postal Service has violated its duty under Section 501 of the Act to structure its procedures and programs at the Oak Brook Post Office so as to ensure that Davis is afforded equal opportunities in job assignment and promotion, as well as its duty under Section 504 of the Act not to discriminate against an "otherwise qualified handicapped individual." See Prewitt, 662 F.2d at 306.

22. Davis has demonstrated that she was denied the time and attendance clerk position "solely by reason of" her deafness. See Carter, 849 F.2d at 1053.

DECISION

Pursuant to Rule 58 of the Federal Rules of Civil Procedure, this Court enters judgment in favor of the plaintiff, Karin Davis, and against the defendant, Anthony Frank, Postmaster General of the United States, and orders the defendant as follows:

(a) to immediately appoint Davis to the time and attendance clerk position as if she had been awarded the position on July 14, 1986;

(b) to immediately make the accommodations described in this opinion within the workplace;

(c) to immediately pay to Davis the seniority pay increases and any other benefits she would have received if she had been awarded the time and attendance clerk position on July 14, 1986; and

(d) to reimburse Davis for reasonable attorneys' fees and costs incurred in this case. Davis' attorneys are ordered to file a verified, itemized petition for attorneys' fees and costs on or before May 19, 1989.

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.